Yearly Archives: 2023

How Important Is Corporate Governance? Evidence from Machine Learning

Anastasia Zakolyukina is an Associate Professor of Accounting and a William Ladany Faculty Scholar at University of Chicago Booth School of Business, Ian D. Gow is a Professor of Accounting at the University of Melbourne, and David F. Larcker is the James Irvin Miller Professor of Accounting, Emeritus, at Stanford Graduate School of Business. This post is based on their recent paper. Related research from the Program on Corporate Governance includes What Matters in Corporate Governance? (discussed on the Forum here) by Lucian Bebchuk, Alma Cohen, and Allen Ferrell. 

A significant body of research on corporate governance has emerged in recent decades. Much of this research has focused on individual governance provisions, such as staggered boards or CEO duality. Yet, a careful reading of this research suggests that for most governance provisions, the evidence is mixed. Some papers will find that a provision is good for shareholders, while other papers will find that it is bad. Often later papers attempt to synthesize research and find that the evidence is mixed at best. (See Larcker and Tayan [2020] for discussion of prior research on corporate governance.)

Some papers have looked to incorporate individual governance provisions into broader measures of corporate governance quality. Typically these measures will involve aggregation of governance provisions into a kind of index. But again the evidence is often mixed.

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US M&A Levels Remain Healthy

Maxim Mayer-Cesiano is a Partner and Jonathan E. Berger is an Associate at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum. Related research from the Program on Corporate Governance includes Are M&A Contract Clauses Value Relevant to Target and Bidder Shareholders? (discussed on the Forum here) by John C. Coates, Darius Palia, and Ge Wu; and The New Look of Deal Protection (discussed on the Forum here) by Fernan Restrepo and Guhan Subramanian. 

Key Points

  • Volatile global financial markets and recessionary fears have led to declining boardroom confidence and a decrease in deal activity from 2021’s record levels but are still healthy by historical standards.
  • Strategic drivers of M&A activity are in place, and high levels of corporate and financial sponsor dry powder are available to support deal activity.
  • Economic stresses, uncertain financing markets and heightened regulatory scrutiny make it crucial for parties to conduct robust due diligence and negotiate deal terms to address downside and termination risks.
  • In a down market, buyers may find opportunities to acquire appealing targets that were previously out of reach.

Acquisition market participants in the U.S. approached dealmaking with greater caution in 2022 than they did in 2021. Steadily rising interest rates and financing costs, persistent inflation, geopolitical uncertainty, heightened global regulatory scrutiny and a general decline in boardroom and investor confidence have all contributed to this change. Unpredictable market dynamics have made sellers wary of overly opportunistic buyers, while buyers have been cautious of overpaying in what they may see as a new normal. It has become more difficult to reach agreement than it was during the booming M&A market of 2021.

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Top 5 SEC Enforcement Developments

Haimavathi V. Marlier, Jina Choi, and Michael D. Birnbaum are Partners at Morrison & Foerster LLP. This post is based on their Morrison & Foerster memorandum.

We summarize below some of the most important SEC enforcement developments from the past month. This post covers:

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important SEC enforcement developments from the past month, with links to primary resources. This month’s installment covers:

  • Charges against the founder and three promoters of a cryptocurrency trading service operating as a Ponzi scheme;
  • A ruling that a blockchain’s digital token qualifies as a security;
  • An action against a registered investment advising firm for failing to follow its own ESG policies and procedures;
  • The SEC’s remarks at the Securities Enforcement Forum, with a focus on the Commission’s enforcement trends for the 2022 fiscal year; and
  • An overview of the SEC’s Strategic Plan for the 2022–2026 fiscal years.

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Cross-Border M&A – 2023 Checklist for Successful Acquisitions in the U.S.

Adam O. Emmerich and Robin Panovka are Partners at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton memorandum by Mr. Emmerich, Mr. Panovka, Jodi J. SchwartzDavid A. KatzIlene Knable Gotts, Andrew J. Nussbaum and colleagues at Wachtell Lipton. Related research from the Program on Corporate Governance includes Are M&A Contract Clauses Value Relevant to Target and Bidder Shareholders? (discussed on the Forum here) by John C. Coates, Darius Palia, and Ge Wu; and The New Look of Deal Protection (discussed on the Forum here) by Fernan Restrepo and Guhan Subramanian. 

After a record-shattering year for M&A in 2021, a crescendo that built over a decade, powered by unique pandemic conditions, 2022 was, statistically, a reversion to the mean. Worldwide M&A volume was $3.6 trillion in 2022, as against $6.2 trillion in 2021 and an average of $4.3 trillion annually over the prior ten years (in 2022 dollars). Average, however, 2022 was anything but. Russia’s invasion of Ukraine sparked the largest armed conflict in Europe since World War II, creating a mass humanitarian crisis in Ukraine and the region, multiplying food and energy insecurity around the world, and exacerbating unresolved supply chain disruption caused by the coronavirus pandemic. Fiscal stimulus and adaptive monetary policies that supported growth during pandemic lockdowns were followed by inflation and hawkish policy responses, reversing a nearly 40-year trend of declining interest rates.

While M&A was not isolated from all of this upheaval, cross-border M&A continued to be attractive to dealmakers. Cross-border deals were 32% ($1.1 trillion) of global M&A in 2022, consistent with the average proportion over the prior ten years (35%). Acquisitions of U.S. companies by non-U.S. acquirors were $217 billion in transaction volume and represented 6% of 2022 global M&A volume and 19% of 2022 cross-border M&A volume. Canadian, British, Australian, Singaporean and Japanese acquirors accounted for 50% of the volume of cross border acquisitions of U.S. targets, while acquirors from China, India and other emerging economies accounted for about 8%.

We expect cross-border transactions into the U.S. to continue to offer compelling opportunities in 2023. Transacting parties will do better if they are well-prepared for the cultural, political, regulatory and technical complexity inherent in cross-border deals. Advance preparation, strategic implementation and deal structures calibrated to likely concerns are critically important. Now, more than ever, thoughtful regulatory strategy and creative financing approaches deserve special focus.

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D&O Insurers as ESG Monitors

Amelia Miazad is a Professor at the UC Davis School of Law. This post is based on her recent paper. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) and Will Corporations Deliver to All Stakeholders? (discussed on the Forum here) both by Lucian A. Bebchuk and Roberto Tallarita; Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy—A Reply to Professor Rock (discussed on the Forum here) by Leo E. Strine, Jr; and Stakeholder Capitalism in the Time of Covid (discussed on the Forum here) by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita.

Companies must reduce environmental and social harms to remain profitable over the long-term. In response to increasing investor and stakeholder demands, companies have ramped up their ESG commitments, from achieving “Net Zero” to closing the gender and racial pay gap. To protect investors and consumers from companies that make bold commitments, but lack the intention or ability to meet them, global regulators, including the SEC, are focused on “greenwashing”. At the same time, though, there is a proliferation of voluntary and mandatory ESG reporting obligations. And in March 2022, the SEC proposed rule amendments that would require public companies to disclose certain climate-related financial data. Notably, the SEC’s proposed rule encompasses disclosure of how boards are overseeing climate change risks.

Just as many corporate boards were beginning to align their risk oversight and decision-making with this new normal, an intensifying ESG backlash is complicating matters even more. A growing number of federal and state Republican lawmakers are directing  their ire at ESG and vowing to stop “elite progressives” from usurping “free markets”. Paradoxically, these free market champions are proposing–and enacting–sweeping legislation to constrain boards and investors from considering environmental and social risks.

As these discordant ESG demands play out in the public arena, board decision-making is more fraught with legal and regulatory risk than ever. We are already witnessing an increase in ESG-related shareholder litigation and SEC investigations. And a bevy of law firm memos warn that the proliferation of both pro and anti-ESG legislation increases legal risk for directors.

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2023 Annual Letter to Boards

Pamela Marcogliese is a Partner at Freshfields Bruckhaus Deringer LLP. This post is based on her Freshfields piece.

Introduction

Against a backdrop of challenging macroeconomic forces, our 2023 annual letter to boards is one that emphasizes understanding and preparing for the additional hurdles that will compound and be compounded by these macroeconomic forces.

How to Be Prepared for M&A Strategies in 2023

Regulators during 2023 will continue to use antitrust and foreign investment regimes to try to impede M&A strategies. Boards have to be prepared to resort to litigation, innovative fix-it-first strategies, and well-designed “efforts” covenants and “outside date” provisions to assure that the merger parties are aligned and prepared to survive the gauntlet of regulatory hurdles. In addition, understanding the interplay among the global regulators – especially the UK CMA, EC, China’s SAMR, and the US antitrust agencies, as well as CFIUS and the European, Asian and UK national security regulators – will be critical for boards to effectively evaluate risks and successfully execute their M&A projects.

We anticipate that it will be advisable for boards looking to divest businesses to continue to consider distributions of the business via a spin-off (including a Reverse Morris Trust), which allows for greater certainty of execution and an opportunity for a cash yield from leverage. A split-off, where the parent company offers shareholders the opportunity to exchange parent shares for SpinCo shares, achieves a similar outcome with the additional benefit of retiring parent shares and thereby enhancing EPS.

Many boards will have to become familiar in the coming months with the direct lending market, which is going to be the critical component for leveraged M&A in the near-term. Boards and management teams will need to understand how the process of obtaining commitments from direct lenders differs from, and in many ways is more burdensome than, the traditional approach of obtaining commitments from banks.

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Weekly Roundup: December 30-January 5, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of December 30-January 5, 2023

SEC Press Release provides Compliance Checklist for Corporations


The Top 15 Anticipated ESG-Related Considerations That Will Influence Strategy in 2023


Crisis prevention and readiness



National Security Creep in Corporate Transactions


The board’s role: building trust in a multi-stakeholder world


ESMA Consultation Paper on Fund Names to Tackle Greenwashing


Industry Asset Revaluations around Public and Private Acquisitions


Activating Sustainability in the Boardroom


2022 U.S. CEO Outlook


Between Public and Private Enterprise: The Role and Structure of Special-Purpose Governments


2022 U.S. Shareholder Activism and Activist Settlement Agreements


2022 U.S. Shareholder Activism and Activist Settlement Agreements

Melissa Sawyer, Lauren Boehmke are partners and Susan M. Lindsay is counsel at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell memorandum by Ms. Sawyer, Ms. Boehmke, Ms. Lindsay, Rodge Cohen, and Marc Treviño. Related research from the Program on Corporate Governance includes Dancing with Activists (discussed on the Forum here) by Lucian A. Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch; The Long-Term Effects of Hedge Fund Activism (discussed on the Forum here) by Lucian A. Bebchuk, Alon Brav, and Wei Jiang; and Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System (discussed on the Forum here) by Leo E. Strine, Jr. 

TRENDS IN SHAREHOLDER ACTIVISM

A. ACTIVISM ACTIVITY SURGES DESPITE MACROECONOMIC UNCERTAINTY AND MARKET VOLATILITY, LEADING TO INCREASED USE OF RIGHTS PLANS

Activism activity surged in 2022 despite turbulent markets amid macroeconomic uncertainties, including the continuing impacts of COVID-19, rising inflation rates, global supply chain issues, higher oil prices and the Russia/Ukraine war. The first quarter of 2022 represented the busiest quarter for U.S. activism on record as company advance notice windows began opening for the 2022 annual meeting cycle, and activism activity levels remained elevated during the second and third quarters of 2022 as compared to 2021 and 2020 (though more in line with historic pre-pandemic levels). This is in contrast to 2020, when activism activity was dampened during the even higher levels of stock market volatility resulting from the onset of the COVID-19 pandemic due to the economic uncertainty caused by the pandemic and concerns about acquiring stock that could continue to decline rapidly. During 2022, however, activists sought to take advantage of depressed stock prices and deteriorating financial outlooks from companies struggling with macroeconomic headwinds. Nonetheless, as discussed in the section titled “Activism Campaign Data Overview”, this increased activity did not lead to higher rates of success for activists.

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Between Public and Private Enterprise: The Role and Structure of Special-Purpose Governments

Conor Clarke is an attorney in the Office of Legal Counsel of the U.S. Department of Justice and Henry Hansmann is the Oscar M. Ruebhausen Professor Emeritus of Law at Yale Law School. This post is based on their recent paper.

Special-purpose governments and the difference between public and private organizations

What is a government as distinguished from a private organization? The term “government” may bring to mind an organization that provides or regulates a broad array of services. But that description fits only a minority—roughly 40,000 — of the 90,000 (mostly local) governments in the United States. The Census labels most American governments “special-purpose” governments, which usually undertake only a single activity, such as water supply, fire protection, or trash collection. There is little between these special-purpose governments and those that provide a broad array of services. That is, there are virtually no two-, three-, or four-purpose governments.

The services provided by special-purpose governments overlap almost completely those provided by general-purpose governments (including counties, municipalities, and townships). Special-purpose governments also resemble, in important respects, private organizations such as cooperatives, condominiums, mutuals, and nonprofits. Examining these institutions together provides an opportunity to pursue fundamental questions concerning the difference between governments and private organizations, as well as the reasons why local governments have the legal and organizational structures that we observe.

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2022 U.S. CEO Outlook

John Rodi is the leader of the KPMG Board Leadership Center (BLC). This post is based on his KPMG memorandum.

Overview

On the heels of the pandemic, CEOs are now facing another turbulent period. Our latest CEO Outlook is being released amid a business environment marred by high inflation, geopolitical tensions and fears of a recession. But the resilience shown during the most challenging days of COVID-19 bodes well for the future.

Featuring insights from more than 1,300 CEOs at large companies globally, including 400 in the United States, the survey finds a majority of U.S. CEOs confident about growth over the next three years and the resilience of their companies in the near term, as they have been preparing for a recession by implementing new strategies to drive efficiency and expansion. They are set on transformative growth via mergers and acquisitions, with a majority considering making strategic deals to propel their businesses.

CEOs are balancing the priorities that have been foundational to our CEO Outlook and looking to turn risk into opportunity by focusing on technology, ESG and talent.

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